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An interesting question posed by our friends at the Freakonomics blog – is offering discounts by name (in this case names that would likely be more common with Caucasians) represent racial discrimination?

Click the link below for the full post, and don’t miss Freakonomics author (and author of the linked post) Stephen J. Dubner as he speaks at the 2013 PLUS International Conference in November.

Driving in to work the other morning I heard about this story on the radio, and couldn’t help but think of the EPLI nightmare it potentially presents (and its potential as a Fall Through the Cracks Friday post). From the “no good deed goes unpunished” file…

A woman in New York donated her kidney to help save the life of her boss, who was in need of a transplant. While the woman was not a match for her boss, she did go through with donating her kidney to another recipient in need which, in turn, moved her boss up the transplant list. Fantastic gesture to be sure, but here is where the story gets a bit difficult. From the article:

In January 2011, Brucia called Stevens into her office and asked if she was serious about donating her kidney. Brucia’s donor had backed out.

Stevens told ABCNews.com: “I said, ‘Yeah, sure. This isn’t a joking matter.’ I did not do it for job security. I didn’t do it to get a raise. I did it because it’s who I am. I didn’t want her to die.”

After returning to work, Stevens alleges that Brucia began to attack her. A few days after her return, Stevens, still recovering from surgery, was ill and went home. Stevens claims that Brucia called her and antagonized her at home.

She told The New York Post, “She . . . said, ‘What are you doing? Why aren’t you at work?’ I told her I didn’t feel good. She said, ‘You can’t come and go as you please. People are going to think you’re getting special treatment.’

When Brucia returned, Stevens claims that she berated her in front of other employees and transferred her to a dealership 50 miles away where she was ultimately pushed out of the company.

A complaint has been filed by Stevens with the New York Human Rights Commission.

Have a great week! Watch for two new sessions from the 2012 PLUS D&O Symposium to be posted to PLUS blog next week.

In this preview of an article from Issue XXIV, Volume 11 of the PLUS Journal (November 2011) authors Sarah K Goldstein and Imbar Sagi look at the liability exposures relating to employee use of social media.

More than ever, employers have access to what their employees do and say both inside and outside the workplace. Widespread usage has created a host of problems for employers who do not know the “new rules” of social media. A sampling of recent court and regulatory agency decisions provide some guidance.

A New Jersey court found that a restaurant manager who monitored employees’ postings on their personal Myspace sites violated state and federal laws protecting communications on social media websites. The lawsuit was brought by two employees fired after posting information criticizing their managers on an online forum, which required a password and invitation for access. The managers were not provided such access. However, they coerced an employee into providing the password and, in turn, accessed the site, found the postings and promptly terminated the employees. The court held that employees’ criticisms, expressed via the social network, were protected activity pursuant to the Federal Stored Communications Act (18 U.S.C. Section 2707) and parallel New Jersey statute.

In another case, the National Labor Relations Board (“NLRB”) brought an action against a Connecticut company for illegally terminating an employee who criticized a supervisor on her personal Facebook page. The NLRB took the position that pursuant to Section 7 of the National Labor Relations Act (“NLRA”) the company cannot retaliate against an employee for engaging in “concerted activities for the purpose of collective bargaining or other mutual aid of protection.” The company agreed to revise what the NLRB determined to be overly broad policies and procedures restricting employees from communicating on the internet with other employees about working conditions.

On August 18, 2011, Associate General Counsel of the NLRB issued Memorandum OM 11-74: Report of the Acting General Counsel Concerning Social Media Cases. It summarizes the resolution of more than a dozen cases involving social media. From the NLRB’s standpoint, an employee’s activity is considered to be “concerted” and thereby protected, when the employee acts “with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention. It is significant to note that the participation of more than one employee is not required to find concerted activity.

Concerted activity by employees has been found lawful in the following instances: where a Facebook posting about perceived unfairness in the poster’s workplace drew similar responses from other employees; in a Facebook post by an employee seeking support from co-workers to lodge a complaint about another co-worker; and in a social media posting by an employee who wrote about his disagreement with a management decision. In each of these cases, the employers’ discipline/termination of the employee was found to be problematic.

To date, state and federal courts have applied a broad standard allowing employees to discuss their work concerns in blogs and/or social networks. Similar to cases brought before the NLRB, courts have found concertedness when an employee drafts a post, when employees discuss their concerns and one of the employees decides to blog, and posts on a blog which simply invite others to participate in a discussion where the audience are co-workers interested in the topic at hand.

Because this area of law is still largely uncharted, legal experts suggest that employers take precautions against potential exposure now by having policies and procedures in place. Employers are urged to consider the NLRA Section 7, Title VII and correlated state statues as well as freedom of speech rights so that the rights of employees are not chilled via the company’s social media policy.

Employer surveillance creates fear among employees and chills their freedom to exercise rights under the labor laws. When surveillance is used to track an employee for retaliatory purposes, such surveillance is unlawful. However, surveillance may be lawful when the employer has a reasonable belief that an employee is placing a company at risk for breach of confidentiality or proprietary information.

PLUS members can read the entire article onwww.plusweb.org.You must log in to the website to view this content.